2010 (6) TMI 597 - AT - Income Tax

Deduction u/s 80-IB(10) - The first objection of the Assessing Officer in denying the exemption under section 80-IB(10) is sale of land by the assessee before the start of the project and consequently lesser area available with the assessee than the area which were submitted for approval of the project - The basic condition for availing exemption under section 80-IB(10) of the Act is approval of the project as housing project by the prescribed authority on a plot of area of more than 1 acre - Held that Assessing Officer and CIT(A) have failed to consider the same in the right perspective - After the town planning scheme was approved for development of 8.7 acres assessee sold plot area of 3 acres which is permissible under law as clarified by the Executive Officer Municipal Council Zirakpuar Regarding commercial area - Assessee claims that (a) no commercial unit was sold during the year; (b) some commercial plots were sold by assessee on which no deduction under section 80-IB(10) was claimed and (c) it had developed only a office block in the project - In case plea of the assessee is found to be correct that no such deduction is claimed on the commercial area then there is no merit in the disallowance on this count Regarding covered area of each unit was found to be in excess of 1500 sq. feet as per the report of DVO - assessee admits that the DVO had visited their premises but strongly objects to the reference made to DVO and the findings of DVO - Held that assessee has been denied opportunity of hearing and meeting the objections raised by DVO. The Assessing Officer/DVO have failed to give proper opportunity of hearing to the assessee - Appeal is partly allowed

Summary

Issues Involved:
1. Rejection of deduction claim under section 80-IB(10) of the Income-tax Act.
2. Denial of opportunity to the assessee by the District Valuation Officer (DVO).
3. Incorrect and contradictory valuation reports by the DVO.
4. Confirmation of addition of Rs. 5,90,000.
5. Disallowance of Rs. 82,937 incurred on account of development charges.

Detailed Analysis:

1. Rejection of Deduction Claim under Section 80-IB(10):
The primary issue is the rejection of the assessee's claim for deduction under section 80-IB(10) amounting to Rs. 2,33,86,551. The Assessing Officer (AO) found that the built-up area of the residential units exceeded 1500 square feet as per the DVO's report. The AO also noted that the commercial area exceeded the prescribed limit, making the project ineligible for the deduction. The CIT(A) upheld this rejection, noting that the project did not meet the conditions laid down in section 80-IB(10), particularly regarding the built-up area and commercial space.

2. Denial of Opportunity to the Assessee by the DVO:
The assessee argued that it was not given an opportunity to present its case before the DVO submitted his report. The DVO's report dated 28-12-2007 was based on an inspection conducted on 26-12-2007, but the assessee was not informed about this inspection or given a chance to respond to the findings. This lack of opportunity was a significant point of contention for the assessee.

3. Incorrect and Contradictory Valuation Reports by the DVO:
The DVO provided two reports with different measurements of the built-up area. The first report dated 27-12-2007 showed the built-up area as less than 1500 square feet, while the second report dated 28-12-2007 showed it as more than 1500 square feet. The assessee contended that the DVO's measurements were incorrect and based on surmises and conjectures. The DVO's reports were also contradictory, with no clear explanation for the changes in measurements.

4. Confirmation of Addition of Rs. 5,90,000:
The CIT(A) confirmed the addition of Rs. 5,90,000 made by the AO. However, this ground was not pressed by the assessee during the appeal, and hence it was dismissed.

5. Disallowance of Rs. 82,937 Incurred on Account of Development Charges:
The CIT(A) upheld the disallowance of Rs. 82,937 incurred on account of development charges. The assessee had not maintained records for the past 13 years, leading to this disallowance. This ground was also not pressed by the assessee during the appeal, and hence it was dismissed.

Conclusion:
The appeal was partly allowed, with the case being remanded back to the AO for reconsideration of the deduction claim under section 80-IB(10). The AO was directed to verify the assessee's claims regarding the built-up area and commercial space, and to provide a reasonable opportunity of hearing to the assessee. The issues regarding the addition of Rs. 5,90,000 and disallowance of Rs. 82,937 were dismissed as they were not pressed by the assessee.